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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Kenneth & Sons v. Northern District Committee of Ayrshire County Council [1900] ScotLR 37_366 (26 January 1900) URL: http://www.bailii.org/scot/cases/ScotCS/1900/37SLR0366.html Cite as: [1900] ScotLR 37_366, [1900] SLR 37_366 |
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Page: 366↓
[Sheriff Court of Ayrshire.
By section 131, sub-section 1, of the Public Health (Scotland) Act 1897 it is provided that a resolution by a local authority for forming a special water
Page: 367↓
supply District or for enlarging or limiting the boundaries of a special water supply district, shall be published in one or more newspapers circulating in the district.” Held that by “district” is meant the whole district administered by the local authority, and that it is not limited either to the area or areas with which it is proposed to deal, or to the special water supply district of which they form or are intended to form a part.
Section 3 of the Public Health (Scotland) Act 1897 provides that “In this Act the following words and expressions have the meanings hereinafter assigned to them, unless such meaning is inconsistent with the context—The word ‘district’ means the district of any local authority under this Act.”
Section 131 provides that “(1) Upon requisition to that effect made in writing by a parish council or by not fewer than ten ratepayers within the district, the local authority shall be bound to meet after twenty-one days' notice … and shall, whether water supply has been already provided or not, consider the propriety of ( a) forming part of their district into a special water supply district or—( b) enlarging or limiting the boundaries of a special water supply district and the resolution of the local authority shall determine all questions regarding the payment of any debt which may affect any district or special water supply district, and the right to impose and the obligation to pay any assessment affected by such determination … and such resolution shall be published in one or more new papers circulating in the district, or by the posting of handbills throughout the district … and within twenty-one days after the date of the first publication of such resolution it shall be competent for any person interested to appeal against the resolution to the sheriff, and the sheriff, not being a sheriff-substitute resident within the district, may either approve or disapprove of such resolution … and the decision of the sheriff shall be binding and shall be final.”
Section 185 enacts that, “Bye-laws made by a local authority under this Act shall not … be confirmed unless notice of intention to apply for confirmation of the same has been given in one or more of the local newspapers circulated within or by handbills posted throughout the district to which such bye-laws relate.”
By section 122, which deals with special drainage districts, it is provided that the requisition to the local authority to meet is to be by “a parish council or by not fewer than ten ratepayers within the district of a local authority.”
At a meeting of the Northern District Committee of the County Council of Ayrshire held on 10th November 1898, it was resolved to enlarge the boundaries of the Special Water Supply District of Dreghorn to the effect of including therein two additional areas which day in the parishes of Dreghorn and Irvine, and were both within the Northern District of the county.
A notice of this resolution was published on 14th November 1898 in the Glasgow Herald.
On 27th April 1899 an action was raised in the Sheriff Court of Ayrshire against the Northern District Committee by Messrs A. Kenneth & Sons, coalmasters, Dreghorn, craving the Court “to interdict the defenders from proceeding upon the after-mentioned resolution passed by them as if the same had been duly published in terms of the Public Health (Scotland) Act 1897, and had become final; and from executing any works with a view to carrying said resolution into effect until it shall have been duly published and become final in terms of said statute.”
The pursuers, who were proprietors of subjects within one of the proposed additional areas, averred that “the said resolution of the defenders had not been published in one or more newspapers circulating in the district, or by the posting of handbills throughout said district,” as required by the statute. They averred that they had learnt for the first time on January 22nd 1899 of the publication of the notice in the Glasgow Herald, and that “(Cond. 6) The pursuers, who were strongly opposed to said resolution, which would throw a very heavy burden upon them without any corresponding advantages, requested the defenders to publish the same in terms of the statute that they (the pursuers) might exercise their statutory right of appealing against it; but the defenders have refused to do so, contending erroneously that one publication in the Glasgow Herald was enough to comply with the statute.”
They further averred that there were several local weekly papers in which notices affecting the district had formerly been advertised, and that “the Glasgow Herald is not as matter of fact a newspaper which circulates in the district in question.”
The pursuers pleaded—“(1) The defenders being about to act upon the resolution in question, although the same has not been published as required by the Public Health (Scotland) Act 1897, interdict should be granted as craved, with expenses.”
The defenders contended that the publication in the Glasgow Herald was a due compliance with the requirements of the statute, that newspaper being “a newspaper circulating in the district of the defenders as local authority under said Act, which district … includes the Special Water Supply District of Dreghorn.”
They pleaded—“The resolution in question having been duly passed and published in terms of the Public Health (Scotland) Act 1897, and being in every respect regular and legal, the defenders are entitled to take all lawful action and proceedings thereon, and the interdict craved should be refused, with expenses.”
The Sheriff-Substitute ( Hall) allowed the parties a proof.
The pursuers while not disputing that the Glasgow Herald circulated in the Northern
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District of the county, endeavoured to prove that it did not circulate in the existing Special Water Supply District, or in the proposed additional areas. In view, however, of the decision of the Court it is unnecessary to refer further to the evidence led. The Sheriff-Substitute on 28th June 1899 pronounced the following interlocutor:—“Finds that on 10th November 1898 the defenders, as Local Authority of the Northern District of Ayrshire under the Public Health (Scotland) Act 1897, passed a resolution to alter and enlarge the boundaries of the Special Water Supply District of Dreghorn, to the effect of including therein the areas described in the prayer of the petition: Finds that the said resolution was published by the defenders in the Glasgow Herald of 14th November 1898: Finds that the Glasgow Herald is a newspaper circulating in the district of which the defenders are the local authority within the meaning of section 131, subsection 1, of the said Public Health (Scot land) Act 1897: Finds in law that the said resolution was published at the said date in terms of the said Public Health (Scotland) Act 1897: Therefore sustains the defences and assoilzies the defenders from the conclusions of the action: Finds the pursuers liable in expenses,” &c.
Note.—“By section 3 of the Public Health (Scotland) Act 1897 the word ‘district’ is defined to mean ‘the district of any local authority under this Act.’ It seems, however, to be law that the definition of a word contained in the interpretation clause of a statute is not conclusive, but must give way if in any particular context the sense so requires (Hardcastle on Statute Law, 2nd ed. p. 236); and the pursuers argued that in section 131, sub-section 1, the sense requires that the word ‘district’ should have a more restricted meaning than that given to it in the foregoing definition, and should be limited either to the area or areas with which it is proposed to deal under that section, or at all events to the special water supply district of which they form, or are intended to form, a part. In my opinion, the word ‘district’ in section 131, sub-section 1, means the district of the local authority as defined by section 3, and I think this clearly appears from comparing it with section 122, where the meaning is so expressed. Taking this view, I cannot doubt that the Glasgow Herald is a newspaper circulating in the district within the meaning of section 131, sub-section 1, having in fact the largest circulation in that district of any daily newspaper. It may be that its daily circulation falls short of the once-a-week circulation of some of the local weekly newspapers; but had it been the intention of the Legislature to make it imperative on the local authority to publish such a resolution as the one in question in a local newspaper, this would have been expressly provided in the Act as it is in regard to bye-laws under section 185. The defenders were therefore free to exercise their own discretion as to the newspaper or newspapers in which a resolution should be published, provided they could truly be described as newspapers circulating in the district. I may not think that in this particular case they made the best possible exercise of their discretion; but I feel constrained to hold that the requirements of the statute were complied with, and that the defenders are accordingly entitled to absolvitor.”
The pursuers appealed to the First Division.
The arguments of the parties appear sufficiently from the opinions of the Court.
The pursuers do not in the record state what they maintain to be the meaning of “district” as used in the part of section 131 referred to, although they were somewhat pointedly challenged to do so by the defenders' answer 4, in which it is stated that the Glasgow Herald “is a newspaper circulating in the district of the defenders as local authority under the said Act.” That is the Act of 1897. It might have been expected that if the pursuers had meant to contend that that was not the “district” referred to in section 131, they would have stated what in their view the territorial area there described as the “district” was. But the Sheriff-Substitute in his note says that the pursuer's contention before him was that the word “‘district’ should be limited either to the area or areas with which it is proposed to deal under that section, or at all events to the special water supply district of which they form or are intended to form a part.” A choice was then given of several alternatives which might be taken as the “district,” and the pursuer's counsel also gave us the choice of several alternative areas which might be the “district” referred to. I understood, however, that he preferred the existing water supply district of Dreghorn plus the areas proposed to be added to it. As to the area thus suggested it may be sufficient to say that it was not an ascertained or established area at the time when the advertisement requires to be made. It would be natural to suppose that the Act in speaking of “district” must have referred to some area having a known legal status at the time; but the existing special water supply district with a proposed enlargement had no such status, having only reached the stage of being a proposed water supply district.
What I have now said would not go far towards solving the question, though the suggested meaning is antecedently improbable. In considering what is meant by the term “district” in section 131, it is
Page: 369↓
The question then comes to be, whether in section 131 that definition is displaced by anything which occurs in the section. Now, it appears to me that so far from there being anything in section 131 to show that the “district” there referred to was some other area, the terms of the section support the view that the district referred to is the area mentioned in the statutory definition. There is, first, a provision that upon a requisition of a certain number of ratepayers “within the district” certain things shall be done. It is to be presumed that ratepayers within the district who make a requisition must be resident within a known area having a legal status at the time, before anything is done in regard to advertisement; and that would apply to the whole district of the local authority, because they are the authority of the whole district from which it was proposed to sever a part and add it to the existing special water supply district of Dreghorn. As the territory administered by the local authority would or might be affected, it would be antecedently probable that notice would be required throughout the “district” in the statutory sense. This view seems to me to receive confirmation from the decision that recourse may be had against the whole “district” to make good any shortcoming in the power of a special water supply district to recover the whole cost of water supply works within it.
Next, after defining under five heads the different proposals which may be considered, section 131 continues, “and the resolution of the local authority shall determine all questions regarding payment of any debt which may affect any district or special water supply district”—contrasting the “water supply district” with the “district” in the sense of the interpretation clause. There could of course be no special debt affecting a minor district which had not yet been constituted under the Act, and in this section the “district” in the statutory sense is contrasted with another district described at large as a “special water supply district.” Then comes the part of section 131 under which this question arises—“And such resolution shall be published in one or more newspapers circulated in the district.” This cannot refer to the special water supply district, because when that district is meant it is so particularly described. The same contrast between the use of the word “district” and “special water supply district” or “special district” occurs throughout the rest of the section.
Reference was made in the argument to section 122, and quite properly, as it deals with a subject not very different from special water supply districts, viz., special drainage districts. It provides that upon requisition by not fever than ten ratepayers “within the district of the local authority,” the authority shall do certain things. It is quite true that here the words “of the local authority” are added, but which are not added in section 131. It may be said that the addition of these words was unnecessary, because “district” used alone would have had the same meaning. But the addition shows this, that in dealing with an analogous subject the territorial unit taken is the larger one of the local authority. The language differs in the two sections; but it appears to me that the meaning is the same in both, and I have already pointed out that unless there is something to displace the statutory definition it must prevail.
Reference was made to section 185, relative to the publication of notice of intention to apply for confirmation of bye-laws, which is required to be given “in one or more of the local newspapers circulated within, or by handbills posted throughout the district to which such bye-laws relate.” There is one expression there which might give rise to discussion, viz., what is a “local newspaper”? and whether it does not mean a newspaper published as well as circulated in the locality. That is a less clear section than section 131, but it does not indicate in the policy of the statute anything at all inconsistent with what appears to me to be the true construction of section 131. For these reasons I consider that the Sheriff-Substitute is right in the view which he has taken as to the meaning of “district” in section 131.
The second question is, whether the Glasgow Herald is a newspaper circulating in the district, and if the views which I have expressed as to the meaning of “district” in section 131 are correct, I do not understand this to be disputed. The district of the local authority is a large one containing twelve parishes, and it is proved that the Glasgow Herald circulates largely in it. It is not necessary to say whether adequate circulation of the Glasgow Herald is proved in the smaller “district” contended for by the pursuer, though I rather think it is. Even there a certain number of copies are sold and most of them probably read by more than one person. The selection of the newspapers is however eminently a matter which the statute has left to the administrative decision of the local authority. I therefore think the interlocutor of the Sheriff-Substitute is correct upon this point also.
Page: 370↓
The Court pronounced this interlocutor:—
“Refuse the appeal: Find in terms of the findings in fact and in law in the interlocutor of the Sheriff-Substitute dated 28th June 1899: Affirm the said interlocutor: Of new assoilzie the defenders from the conclusions of the action, and decern: Find the pursuer liable in additional expenses from the date of said interlocutor, and remit,” &c.
Counsel for Pursuers—Solicitor-General ( Dickson, Q.C.)— Clyde. Agents— Webster, Will, & Co., S.S.C.
Counsel for Defenders— Ure, Q.C.— James Reid. Agents— Carment, Wedderburn, & Watson, W.S.
